This Article applies lessons from democratic Athens of the fifth and fourth centuries B.C.E. to shed light on contemporary theories about the rule of law, popular constitutionalism, and transitional justice. First, using methods from philosophy and history, it shows that Athens largely satisfied the demands of the rule of law, and, consistent with the philosophical theory that the author has developed elsewhere, the Athenians saw the rule of law as protecting the equality of the democratic masses against individual and collective threats from overweening aristocrats. It then turns to political science methods to account for events in Athens at the end of the fifth century. At that time, there were two short-lived oligarchic coups, the second of which, the notoriously blood-soaked regime of the Thirty Tyrants, was followed by an amnesty protecting those who had collaborated with the regime. This Article explains why the amnesty was obeyed. The success of the amnesty has puzzled generations of historians; here, it is argued that the amnesty was obeyed because Athenian democrats had learned that respecting the rule of law was necessary for their collective self-defense against oligarchic threats. Finally, the article draws lessons from the Athenian experience for contemporary communities, arguing: a) that popular constitutionalism is compatible with the rule of law in contemporary states, and b) that the rule
{"title":"Democracy, Solidarity, and the Rule of Law: Lessons from Athens","authors":"Paul Gowder","doi":"10.2139/SSRN.2055435","DOIUrl":"https://doi.org/10.2139/SSRN.2055435","url":null,"abstract":"This Article applies lessons from democratic Athens of the fifth and fourth centuries B.C.E. to shed light on contemporary theories about the rule of law, popular constitutionalism, and transitional justice. First, using methods from philosophy and history, it shows that Athens largely satisfied the demands of the rule of law, and, consistent with the philosophical theory that the author has developed elsewhere, the Athenians saw the rule of law as protecting the equality of the democratic masses against individual and collective threats from overweening aristocrats. It then turns to political science methods to account for events in Athens at the end of the fifth century. At that time, there were two short-lived oligarchic coups, the second of which, the notoriously blood-soaked regime of the Thirty Tyrants, was followed by an amnesty protecting those who had collaborated with the regime. This Article explains why the amnesty was obeyed. The success of the amnesty has puzzled generations of historians; here, it is argued that the amnesty was obeyed because Athenian democrats had learned that respecting the rule of law was necessary for their collective self-defense against oligarchic threats. Finally, the article draws lessons from the Athenian experience for contemporary communities, arguing: a) that popular constitutionalism is compatible with the rule of law in contemporary states, and b) that the rule","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"62 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"2013-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67892611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entree into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”
{"title":"The Faculty Workshop","authors":"Pierre Schlag","doi":"10.2139/SSRN.1857525","DOIUrl":"https://doi.org/10.2139/SSRN.1857525","url":null,"abstract":"This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entree into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67761550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn were long considered the two thought-leaders of probably the most important movement in legal thought of the twentieth century, legal realism. And his most famous contribution to legal theory, Law & the Modern Mind, is still regarded as a legal classic. But at a time of renewed scholarly attention to legal realism, Frank is typically characterized these days as an “extreme” realist, who was a peripheral figure within that movement. He tends to be treated as an erratic, if perhaps brilliant, thinker who made some insightful critiques but who never even attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform. This view of Frank seems to me deeply mistaken, and the aim of this essay is to correct it. I do so by offering a close reading of his most famous and controversial work, Law & the Modern Mind. My argument, in short, is that generations of scholars have misinterpreted this book because they have misunderstood Frank’s philosophical worldview and, therefore, his intellectual ambitions. If one takes Law and the Modern Mind on its own terms and if one reads its argument as a whole, rather than simply as a series of one-off critiques, one can see that Frank did not deny the possibility of rational legal decisionmaking, but rather sought to articulate the habits of mind and character on which he believed the sound administration of justice depended. Understanding Frank’s true concerns matters today because the questions he raised remain unanswered, and many of today’s proponents of a “new legal realism” deem them hardly worth asking.
{"title":"Jerome Frank and the Modern Mind","authors":"Charles L. Barzun","doi":"10.2139/SSRN.1460697","DOIUrl":"https://doi.org/10.2139/SSRN.1460697","url":null,"abstract":"Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn were long considered the two thought-leaders of probably the most important movement in legal thought of the twentieth century, legal realism. And his most famous contribution to legal theory, Law & the Modern Mind, is still regarded as a legal classic. But at a time of renewed scholarly attention to legal realism, Frank is typically characterized these days as an “extreme” realist, who was a peripheral figure within that movement. He tends to be treated as an erratic, if perhaps brilliant, thinker who made some insightful critiques but who never even attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform. This view of Frank seems to me deeply mistaken, and the aim of this essay is to correct it. I do so by offering a close reading of his most famous and controversial work, Law & the Modern Mind. My argument, in short, is that generations of scholars have misinterpreted this book because they have misunderstood Frank’s philosophical worldview and, therefore, his intellectual ambitions. If one takes Law and the Modern Mind on its own terms and if one reads its argument as a whole, rather than simply as a series of one-off critiques, one can see that Frank did not deny the possibility of rational legal decisionmaking, but rather sought to articulate the habits of mind and character on which he believed the sound administration of justice depended. Understanding Frank’s true concerns matters today because the questions he raised remain unanswered, and many of today’s proponents of a “new legal realism” deem them hardly worth asking.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"58 1","pages":"1127"},"PeriodicalIF":0.5,"publicationDate":"2009-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1460697","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.
{"title":"Advertising and Social Identity","authors":"M. Bartholomew","doi":"10.2139/SSRN.1457236","DOIUrl":"https://doi.org/10.2139/SSRN.1457236","url":null,"abstract":"This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"58 1","pages":"931-976"},"PeriodicalIF":0.5,"publicationDate":"2009-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1457236","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-01-01DOI: 10.1017/CBO9780511609800.003
G. Blumberg
{"title":"Critical Tax Theory: Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers","authors":"G. Blumberg","doi":"10.1017/CBO9780511609800.003","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.003","url":null,"abstract":"","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"21 1","pages":"49"},"PeriodicalIF":0.5,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57077941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Should copyright be extended to a work of authorship that consists of rules for producing another work of authorship, or, conversely, to a work that owes its genesis to the application of such rules? If 'yes' for either, are 'A' and 'B' two separate works, or two dimensions of the same work? In the leading case, Southco, Inc. v. Kanebridge Corp., the plaintiff claimed copyright protection for the individual serial numbers generated by a set of proprietary numbering rules; similar issues, however, are raised by any work whose claim to originality comes from how its literal elements are structured, such as compilations, games, recipes, blueprints, score sheets, taxonomies, price estimates, and computer programs. The more basic problem is the relationship between function and expression in works of authorship generally, and what freely willed self-expression in those works requires. I trace the doctrinal forebears of Southco to the seminal case of Baker v. Selden, and focus on the question of how to evaluate the copyright status of a work of authorship whose rule-basis engenders its textual form in an invariant and predetermined manner.
版权是否应该扩展到由创作另一个作者作品的规则组成的作者作品，或者相反，应该扩展到由于应用这些规则而产生的作品?如果有一个回答“是”，那么“A”和“B”是两个独立的作品，还是同一作品的两个维度?在Southco, Inc.诉Kanebridge Corp.案中，原告要求对由一套专有编号规则生成的单个序列号进行版权保护;然而，类似的问题也会出现在那些声称其原创性来自其文字元素结构的作品中，如汇编、游戏、食谱、蓝图、计分表、分类法、价格估算和计算机程序。更基本的问题是作者作品中功能与表达的关系，以及这些作品中自由意志的自我表达需要什么。我将索斯科案的理论渊源追溯到具有开创性的贝克诉塞尔登案(Baker v. Selden)，并将重点放在如何评估作者身份作品的版权状态的问题上，其规则基础使其文本形式以不变和预先确定的方式产生。
{"title":"Rule-Based Expression in Copyright Law","authors":"Jeffrey Malkan","doi":"10.2139/SSRN.1015095","DOIUrl":"https://doi.org/10.2139/SSRN.1015095","url":null,"abstract":"Should copyright be extended to a work of authorship that consists of rules for producing another work of authorship, or, conversely, to a work that owes its genesis to the application of such rules? If 'yes' for either, are 'A' and 'B' two separate works, or two dimensions of the same work? In the leading case, Southco, Inc. v. Kanebridge Corp., the plaintiff claimed copyright protection for the individual serial numbers generated by a set of proprietary numbering rules; similar issues, however, are raised by any work whose claim to originality comes from how its literal elements are structured, such as compilations, games, recipes, blueprints, score sheets, taxonomies, price estimates, and computer programs. The more basic problem is the relationship between function and expression in works of authorship generally, and what freely willed self-expression in those works requires. I trace the doctrinal forebears of Southco to the seminal case of Baker v. Selden, and focus on the question of how to evaluate the copyright status of a work of authorship whose rule-basis engenders its textual form in an invariant and predetermined manner.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"57 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2008-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68126539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The GWOT/Global Jihad is different from prior conflicts (including the ideological struggle of the Cold War), and these differences have important strategic consequences which are not reflected in current US policy. First, US strategy has proceeded on traditional, and inapposite, understandings of the politics that informs this war. Second, radical neofundamentalism is a new form of political organization, attuned to a globalized world, with a distinctive form of violence quite different from the violence organized by the bureaucratic apparatus of a modern professional military grounded in a nation state. Third, the politics of radical neofundamentalism has strategic consequences. On the one hand, there can be no political dialogue, no "battle of ideas," within bin Laden's paradigm. At the same time, bin Laden's war is unwinnable militarily, for the simple reason that any military success is interpreted as a further threat to the ummah, for which further terrorism is the response. Thus the strategic objective for the US is to cope with al-Qaeda while creating an environment in which alternative Islamic ideologies can supplant bin Laden's. Fourth, policies are proposed that would make the conduct of US military and diplomatic policy more suited to the present conflict.
{"title":"Bin Laden's War","authors":"David A. Westbrook","doi":"10.2139/SSRN.927934","DOIUrl":"https://doi.org/10.2139/SSRN.927934","url":null,"abstract":"The GWOT/Global Jihad is different from prior conflicts (including the ideological struggle of the Cold War), and these differences have important strategic consequences which are not reflected in current US policy. First, US strategy has proceeded on traditional, and inapposite, understandings of the politics that informs this war. Second, radical neofundamentalism is a new form of political organization, attuned to a globalized world, with a distinctive form of violence quite different from the violence organized by the bureaucratic apparatus of a modern professional military grounded in a nation state. Third, the politics of radical neofundamentalism has strategic consequences. On the one hand, there can be no political dialogue, no \"battle of ideas,\" within bin Laden's paradigm. At the same time, bin Laden's war is unwinnable militarily, for the simple reason that any military success is interpreted as a further threat to the ummah, for which further terrorism is the response. Thus the strategic objective for the US is to cope with al-Qaeda while creating an environment in which alternative Islamic ideologies can supplant bin Laden's. Fourth, policies are proposed that would make the conduct of US military and diplomatic policy more suited to the present conflict.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"54 1","pages":"981"},"PeriodicalIF":0.5,"publicationDate":"2006-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67888867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The paper asks whether this gulf between American political ideals and reality might have its roots in any kind of flaw in our legal institutions. Do we have, that is to say, a constitutional infrastructure well suited to summoning forth the kind of electoral politics to which we aspire? The paper pursues this question through a close institutional analysis of the federal constitutional jurisprudence of ballot access, public financing of presidential campaigns, the associational rights of political parties, and the giving and spending of money in election campaigns. This analysis reveals that although the American constitutional regime pays emphatic lip service to the ideal of reasoned persuasion in elections, its actual institutional arrangements in fact presuppose just the opposite - election campaigns that are thin rather than thick, that are aggregative rather than deliberative, that are aimed at counting political preferences, not creating them. The paper concludes by examining briefly some of the implications of this disjunction between our democratic ideals and practices for our conceptions of democratic legitimacy, our aspirations for better quality campaigns, our notions of the venues in which democratic politics is actually conducted, and some important scholarly critiques of electoral regulation.
{"title":"Deliberation or Tabulation? The Self-Undermining Constitutional Architecture of Election Campaigns","authors":"James A. Gardner","doi":"10.2139/SSRN.897518","DOIUrl":"https://doi.org/10.2139/SSRN.897518","url":null,"abstract":"Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The paper asks whether this gulf between American political ideals and reality might have its roots in any kind of flaw in our legal institutions. Do we have, that is to say, a constitutional infrastructure well suited to summoning forth the kind of electoral politics to which we aspire? The paper pursues this question through a close institutional analysis of the federal constitutional jurisprudence of ballot access, public financing of presidential campaigns, the associational rights of political parties, and the giving and spending of money in election campaigns. This analysis reveals that although the American constitutional regime pays emphatic lip service to the ideal of reasoned persuasion in elections, its actual institutional arrangements in fact presuppose just the opposite - election campaigns that are thin rather than thick, that are aggregative rather than deliberative, that are aimed at counting political preferences, not creating them. The paper concludes by examining briefly some of the implications of this disjunction between our democratic ideals and practices for our conceptions of democratic legitimacy, our aspirations for better quality campaigns, our notions of the venues in which democratic politics is actually conducted, and some important scholarly critiques of electoral regulation.","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"54 1","pages":"1413"},"PeriodicalIF":0.5,"publicationDate":"2006-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67863941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In his new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (University of Chicago Press, 2005), James Gardner positions state constitutions and their interpretation within federalism, in contrast to others who see state constitutions as largely independent of the federal constitution or as meriting primacy as their own interpretive texts. As Gardner suggests, understanding state constitutions within the larger national system challenges theorists to focus on the function that state constitutions, and sub-national constitutions more generally, perform within a national system. Gardner argues that a functional approach licenses courts to interpret state constitutions instrumentally to facilitate state resistance to national power. He endorses a rebuttable presumption that construes state judicial power to resist federal authority broadly, envisioning a bolder role than alternative theories for state courts in promoting federalism. After summarizing Gardner's approach, I will discuss two possible objections to it. First, his account is based on the primary goal of federalism as protecting liberty (broadly defined) against intrusion by national authorities. This liberty-based understanding of federalism, however, ignores or downplays that federalism may be understood in ways that are agnostic towards national authority. A broader understanding of federalism would give state courts clearer direction in implementing the goals of federalism and also would allow Gardner to extend his interpretive theory to subnational constitutional interpretation contexts outside of the U.S., where the protection of liberty may not have claim to being a primary historical rational for the recognition of state power. Second, even if we accept Gardner's account of federalism, his approach sees the core interpretive problem of state constitutionalism as centered around judicial power to resist the reach of national power. This court-centered approach downplays other important features of state constitutionalism. For example, as the recent disputes over same-sex marriage in California and Oregon remind us, other branches of government, such as the legislature or executive, could have a superior claim to interpreting a state constitution. Further, in some contexts there are strong reasons for understanding state constitutions as being focused on facilitating, not resisting, federal power. To the extent Gardner's approach views courts as resistors rather than facilitators of national authority, his interpretive tools may be limited in their ability to serve the goals of state constitutions - as where a state branch other than a court resists federal power and courts support it. Gardner's interpretive account does little to help courts solve such conflicts, thus inviting courts and scholars to do further interpretational groundwork. Notwithstanding these concerns, the broader framework Gardner lays out is the strongest starting place for
{"title":"The Puzzle of State Constitutions","authors":"Jim Rossi","doi":"10.2139/SSRN.878560","DOIUrl":"https://doi.org/10.2139/SSRN.878560","url":null,"abstract":"In his new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (University of Chicago Press, 2005), James Gardner positions state constitutions and their interpretation within federalism, in contrast to others who see state constitutions as largely independent of the federal constitution or as meriting primacy as their own interpretive texts. As Gardner suggests, understanding state constitutions within the larger national system challenges theorists to focus on the function that state constitutions, and sub-national constitutions more generally, perform within a national system. Gardner argues that a functional approach licenses courts to interpret state constitutions instrumentally to facilitate state resistance to national power. He endorses a rebuttable presumption that construes state judicial power to resist federal authority broadly, envisioning a bolder role than alternative theories for state courts in promoting federalism. After summarizing Gardner's approach, I will discuss two possible objections to it. First, his account is based on the primary goal of federalism as protecting liberty (broadly defined) against intrusion by national authorities. This liberty-based understanding of federalism, however, ignores or downplays that federalism may be understood in ways that are agnostic towards national authority. A broader understanding of federalism would give state courts clearer direction in implementing the goals of federalism and also would allow Gardner to extend his interpretive theory to subnational constitutional interpretation contexts outside of the U.S., where the protection of liberty may not have claim to being a primary historical rational for the recognition of state power. Second, even if we accept Gardner's account of federalism, his approach sees the core interpretive problem of state constitutionalism as centered around judicial power to resist the reach of national power. This court-centered approach downplays other important features of state constitutionalism. For example, as the recent disputes over same-sex marriage in California and Oregon remind us, other branches of government, such as the legislature or executive, could have a superior claim to interpreting a state constitution. Further, in some contexts there are strong reasons for understanding state constitutions as being focused on facilitating, not resisting, federal power. To the extent Gardner's approach views courts as resistors rather than facilitators of national authority, his interpretive tools may be limited in their ability to serve the goals of state constitutions - as where a state branch other than a court resists federal power and courts support it. Gardner's interpretive account does little to help courts solve such conflicts, thus inviting courts and scholars to do further interpretational groundwork. Notwithstanding these concerns, the broader framework Gardner lays out is the strongest starting place for","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"54 1","pages":"211"},"PeriodicalIF":0.5,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67852598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Academic support for American-style corporate reorganization has been at an all-time high, or, at least, calls for the repeal of chapter 11 have been at an all-time low. Critics of chapter 11 now say, approvingly, that the process has become faster, cheaper, more creditor-controlled, and more integrated with market forces. World-renowned economists have looked to modern chapter 11 as the foundation of proposals to improve sovereign debt restructuring internationally. Endorsement of the modern chapter 11 is by no means universal, however. In Courting Failure: How The Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki, a well known academic with deep expertise in bankruptcy, portrays the bankruptcy system in a state of crisis. In this book, we learn that nearly half of the largest firms emerging from chapter 11 as publicly held companies are filing another bankruptcy petition in just a few years. LoPucki attributes the high repeat filing rate to the judges who compete for cases by appeasing case placers, the parties who guide a firm's decision regarding venue selection. A high repeat filing rate first afflicted two magnet venues, the District of Delaware and the Southern District of New York, then spread nationwide as other judges have tried to attract cases to their own courts. Courting Failure's policy prescription is to eliminate inter-venue competition by restricting firms' venue choice. Since the release of Courting Failure, LoPucki has convinced a prominent Senator to introduce legislation accomplishing exactly that. Courting Failure is rich with systematic empirical data, anecdotes, law, theories, allegations, and controversies, as would be expected from a researcher who has made critical contributions to our understanding of corporate reorganization for over two decades. Plenty of academics, lawyers, and judges are examining myriad aspects of Courting Failure, including whether LoPucki oversteps by characterizing the bankruptcy system as corrupted, whether a significant repeat filing is per se undesirable, whether LoPucki uses the ideal parameters to measure repeat filings and failure in bankruptcy, and how all of this affects the international market for judicial services. By contrast, I highlight other aspects of Courting Failure's ambitious thesis that ultimately cannot be sustained. First, Courting Failure cannot tell us enough about the pathways through which competition contributes to failed reorganizations for us to rely on the competition thesis to fuel policy change. Courting Failure's repeat filing data and his examples of competitive practices do not match up temporally or substantively, particularly with respect to the striking increase in repeat filings among firms emerging in 1997 and thereafter. Second, Courting Failure implicitly relies on an account of the drivers of court practices that does not square with the growing body of theoretical and empirical interdisciplinary research on the de
{"title":"Fast, Cheap, and Creditor-Controlled: Is Corporate Reorganization Failing?","authors":"M. Jacoby","doi":"10.2139/ssrn.782486","DOIUrl":"https://doi.org/10.2139/ssrn.782486","url":null,"abstract":"Academic support for American-style corporate reorganization has been at an all-time high, or, at least, calls for the repeal of chapter 11 have been at an all-time low. Critics of chapter 11 now say, approvingly, that the process has become faster, cheaper, more creditor-controlled, and more integrated with market forces. World-renowned economists have looked to modern chapter 11 as the foundation of proposals to improve sovereign debt restructuring internationally. Endorsement of the modern chapter 11 is by no means universal, however. In Courting Failure: How The Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki, a well known academic with deep expertise in bankruptcy, portrays the bankruptcy system in a state of crisis. In this book, we learn that nearly half of the largest firms emerging from chapter 11 as publicly held companies are filing another bankruptcy petition in just a few years. LoPucki attributes the high repeat filing rate to the judges who compete for cases by appeasing case placers, the parties who guide a firm's decision regarding venue selection. A high repeat filing rate first afflicted two magnet venues, the District of Delaware and the Southern District of New York, then spread nationwide as other judges have tried to attract cases to their own courts. Courting Failure's policy prescription is to eliminate inter-venue competition by restricting firms' venue choice. Since the release of Courting Failure, LoPucki has convinced a prominent Senator to introduce legislation accomplishing exactly that. Courting Failure is rich with systematic empirical data, anecdotes, law, theories, allegations, and controversies, as would be expected from a researcher who has made critical contributions to our understanding of corporate reorganization for over two decades. Plenty of academics, lawyers, and judges are examining myriad aspects of Courting Failure, including whether LoPucki oversteps by characterizing the bankruptcy system as corrupted, whether a significant repeat filing is per se undesirable, whether LoPucki uses the ideal parameters to measure repeat filings and failure in bankruptcy, and how all of this affects the international market for judicial services. By contrast, I highlight other aspects of Courting Failure's ambitious thesis that ultimately cannot be sustained. First, Courting Failure cannot tell us enough about the pathways through which competition contributes to failed reorganizations for us to rely on the competition thesis to fuel policy change. Courting Failure's repeat filing data and his examples of competitive practices do not match up temporally or substantively, particularly with respect to the striking increase in repeat filings among firms emerging in 1997 and thereafter. Second, Courting Failure implicitly relies on an account of the drivers of court practices that does not square with the growing body of theoretical and empirical interdisciplinary research on the de","PeriodicalId":51843,"journal":{"name":"Buffalo Law Review","volume":"54 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2005-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67827047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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